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Monthly Archives: September 2013
Food & Allied Workers Union v Ngcobo NO and Another
Reply
| Case No. | Lower Court Judgments | Hearing Date |
| CCT 50/13 | KwaZulu-Natal High Court, Durban, 3 April 2012 SCA, 28 March 2013 |
29 Aug. 2013 |
By Mzukisi Kota on 29 May 2013
This case is concerned with the question of whether a trade union is liable for damages to its members where it has failed to perform in terms of a mandate to represent its members in proceedings before the Commission for Conciliation Mediation and Arbitration (“the CCMA”) and the Labour Court.
Broadly, the Labour Relations Act provides that where there is a dispute about the fairness of a dismissal, the dismissed employee may refer the dispute to the CCMA within 30 days of the dismissal. If the CCMA fails to resolve the dispute through conciliation, it issues a certificate that the dispute remains unresolved and the employee may then refer the dispute to the Labour Court for adjudication. This referral must be made within 90 days after the CCMA has issued its certificate. Continue reading
Brittania Beach Estate (Pty) Ltd and others v Saldanha Bay Municipality
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote | |
| CCT 11/13 | Western Cape High Court, 6 Jun. 2011 SCA, 30 Nov. 2012 |
28 May 2013 | 5 Sep. 2013 | Froneman J. | Unanimous | |
By Duncan Wild on 12 September 2012
The case involves a challenge brought by a property developer (“Brittania“) against a tariff used to determine bulk infrastructure development levies by the Saldanha Bay Municipality (“the Municipality“). Section 42 of the Land Use Planning Ordinance 15 of 1985 (“LUPO”) allows a municipality to impose conditions on the grant of applications for rezoning and sub-division of land (the applications are made in terms of sections 16 and 25 of LUPO). The tariff for the calculation of capital contributions is set by council resolution. Continue reading
Coetzee v National Commissioner of Police and Others
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote | |
| CCT 124/12 | North Gauteng High Court, 11 Oct. 2012 Supreme Court of Appeal, 16 Nov. 2012 |
21 May. 2013 | 29 Aug. 2013 | Nkabinde J. | Unanimous | |
By Duncan Wild on 13 September 2013.
The case originally involved a challenge to the requirements for a lawful arrest, in circumstances where the appellant, Mr Coetzee, was flagged down by a metro police officer and refused to stop, on the basis, according to Mr Cotzee, that he would drive to the nearest police station. The case also considers whether the North Gauteng High Court was correct in ordering that Mr Coetzee be released from custody on the basis of his unlawful detention.
The respondents appeal to the Supreme Court of Appeal who upheld the appeal finding for the respondents, ordering the applicant to pay the costs of the appeal. In the Constitutional Court the remaining issue was an appeal against the costs order of the Supreme Court of Appeal. The Constitutional Court, in an unanimous judgment authored by Nkabinde J (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Skweyiya J and Zondo J concurring), found that the appeal did not relate to a constitutional issue, and so leave to appeal should not be granted. Continue reading
KwaZulu-Natal Joint Liaison Committee v Member of the Executive Council Department of Education, KwaZulu-Natal and Others
| Case No. |
Lower Court Judgments | Hearing Date | Judgment Date | Majority Author |
Vote |
| CCT 60/12 | KwaZulu-Natal High Court, 4 Oct. 2011 | 22 Nov. 2012 | 25 Apr. 2013 | Cameron J. | 6-4 |
By Duncan Wild on 25 April 2013
The KwaZulu-Natal Joint Liaison Committee (“”the Committee“) is an association of independent schools that describe themselves as impoverished and dependent on State subsidies. The Committee brought the case on the basis that the KwaZulu-Natal Department of Education (“the Department“) issued a notice in September 2008 setting out “approximate” subsidies for the 2009/2010 year. The subsidies actually paid out were on average 30% less than stipulated in the notice.
The question the Constitutional Court had to determine is whether issuing the notice, against a background of payments in previous years that did align with the amounts set out in the notices, created a binding obligation to pay the amounts set out in the notice.
A secondary question, in part argued by the amicus, the Centre for Child Law, is that bearing in mind the right to basic education, the issuing of the notice created a legitimate expectation amongst the schools that the subsidies would not be significantly reduced when paid.
In the main judgment authored by Justice Cameron (and concurred in by Moseneke DCJ, Froneman J, Khampepe J, Skweyiya J and Yacoob J), it was held that the notice did not give rise to a contractual obligation. The notice did, however, find that once a public official had made a public statement of a promise to pay specified amounts, that amount could not be unilaterally reduced after the due date for payment. The Constitutional Court therefore overturned the High Court decision and ordered the Department to pay the approximate amounts specified in the 2008 notice. Continue reading
Pilane and Another v Pilane and Another
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote |
| CCT 46/12 |
North West High Court, 30 Jun. 2011 |
13 Sep. 2012 |
28 Feb. 2013 | Skweyiya J. | 8-2 |
Mr Nyalala Pilane, the officially recognized Kgosi and the Traditional Council of the Bakgatla-Ba-Kgafela Traditional Community (“the Traditional Council“), obtained an order in the High Court against Mr Mmuthi Pilane and Mr R Dintwe to prevent them from holding meetings under the auspices of certain entities without their permission, from acting in contravention of statutes governing traditional leadership and representing themselves as a traditional authority.
The Majority of the Constitutional Court overturned the decision of the High Court and set aside the interdict. The Majority held that the requirements for an interdict had not been met, primarily on the basis that Mr Nyalala Pilane and the Traditional Council did not have rights to prevent Mr Mmuthi Pilane and Mr Dintwe from ” [o]rganising or proceeding with any meeting purporting to be a meeting of the Traditional Community or Motlhabe Tribal Authority without proper authorisation by either of the [respondents].” Neither did they show that Mr Mmuthi Pilane or Mr Dintwe had or were likely to breach of the statutes governing traditional leadership. Finally, the Majority held that merely using the names “Bakgatla-Ba-Kautlwale” and “Bakgatla-Ba-Motlhabe” did not suggest that Mr Mmuthi Pilane or Mr Dintwe were claiming to be a traditional authority, but these names were merely “signifiers of the applicants’ ancestral lineage and their place of settlement“. Continue reading
Mazibuko, MP v Sisulu, MP and Another
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote | |
| CCT 115/12 | Western Cape High Court, 22 Nov. 2012 | 28 Mar. 2013 | 27 Aug. 2013 | Moseneke DCJ | 6-4 | |
By Duncan Wild on 27 August 2013
The issue in this case is whether section 102(2) of the Constitution provides a minority of members in the National Assembly with a right to bring a motion of no confidence in the President, and if so whether the Rules of the National Assembly fail to give effect to that right.
This case was brought by Ms Lindiwe Mazibuko acting in her capacity as leader of the opposition in the National Assembly under section 57(2) of the Constitution. On 8 November 2012, Ms Mazibuko gave notice of her intention to move a motion of no confidence in the President, in terms of section 102(2) of the Constitution. After various internal processes occurred, the Speaker of Parliament determined that the motion could not be tabled for debate. Continue reading
Khumalo and Another v MEC for Education, Kwazulu-Natal
Minister of Police and Others v Premier of the Western Cape and Others
| Case No. | Lower Court Judgments | Hearing Date |
| CCT 13/13 | Western Cape High Court, 13 Jan. 2013 | 6 Aug. 2013 |
By Duncan Wild on 23 April 2013
The case involves the legality of the Premier of the Western Cape’s (“the Premier’s”) appointment of the O’Regan Commission into complaints related to inefficiency in the South African Police Service (“the SAPS“) stations in Khayelitsha, as well as the breakdown in relations between the SAPS operating in Khayelitsha and the Khayelitsha community (“the O’Regan Commission”).
On 24 August 2012, the Premier established the O’Regan Commission, appointing its chair, former Justice of the Constitutional Court, Catherine O’Regan, and Mr. Vusumuzi Pikoli as commissioners.
On 5 November 2012, the applicants, including the Minister of Police (“the Minister”), the National Commissioner of the SAPS (“the National Commissioner”) and the Western Cape Provincial Commissioner of the SAPS (“the Provincial Commissioner”) launched an application in two parts: first, seeking an interim interdict halting the operation of the O’Regan Commission, and specifically to prevent Commission from giving effect to subpoenas it had issued or to issue further subpoenas, pending the outcome of the second part; and second, seeking an order setting aside the establishment of the O’Regan Commission.
At this stage, it is strictly speaking only the first part of the relief sought that the court had to decide, that is the interim relief pending a court’s final decision on the legality of the Premier’s establishment of the O’Regan Commission. In other words, the lawfulness of the appointment of the Commission is not directly before the court for decision. What the court must determine is whether the applicants have met the requirements for interim relief: the High Court set out these requirements as “the applicant must establish a prima facie right to the relief sought even if such relief may be open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted: that the balance of convenience favour the granting of the interim relief; and the absence of any other satisfactory remedy available to the applicant.”
In addition, the High Court noted that as the applicants based certain of the relief sought in the Constitution, that the test should be applied “cognizant of the normative scheme and democratic principles that underpin the Constitution,” referring to the Constitutional Court’s e-tolling case, National Treasury & Others v Opposition to Urban Tolling Alliance & Others 2012 (11) BCLR 1148 (CC). The prime impact of this is that when considering the balance of convenience, the court must consider the impact of granting an interim interdict that restrains the constitutional or statutory powers of a state functionary or organ of state.
The applicants challenged the legality of the O’Regan Commission on a number of grounds, including that the Premier: acted irrationally in appointing the Commission; did not comply with the Constitutional obligations of co-operative governance in appointing the Commission; did not engage with the relevant constitutional and statutory bodies before appointing the Commission; and usurped the powers of the police by empowering the Commission to issue subpoenas, including the power to subpoena police officials, as well as to investigate crimes. There were other grounds based on an alleged ulterior motive in appointing the Commission, and that appointing a judge as a commissioner was impermissible. Continue reading
National Society for the Prevention of Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries and Others
| Case No. | Lower Court Judgments | Hearing Date | Judgment Date | Majority Author | Vote |
| CCT 120/12 |
North Gauteng High Court, 15 Nov. 2012 | 19 Mar. 2013 |
11 July 2013 | Zondo J. | Unanimous |
By Duncan Wild on 22 July 2013
The National Society for the Prevention of Cruelty to Animals (“NSPCA“) brought an application to have sections 2 and 3 of Performing Animals Protection Act 24 of 1935 declared unconstitutional, because the sections grant Magistrates the power to license the “exhibiting and training” of performing animals or guard dogs. The NSPCA says it is an executive function to perform acts such as licensing, and not the judiciary’s, and so the sections infringe the principle of separation of powers enshrined in the Constitution and should be set aside. The High Court agreed with the NSPCA and declared the sections unconstitutional. The Constitutional Court confirmed this finding of unconstitutionality in a judgment authored by Justice Zondo. The primary basis for the finding was that the allocation of this executive type function to the judicial branch was an unjustifiable infringement of the separation of powers.
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